[criminal records] The Defendant was sentenced to six months of imprisonment with prison labor for special larceny, etc. at the Gwangju District Court on April 8, 2015, and the judgment became final and conclusive on November 25, 2015, and the prosecutor indicted the Defendant as a repeated offender on October 5, 2015 due to the above criminal records on the ground that the Defendant completed the execution of sentence in Gwangju Prison on October 5, 2015.

However, according to the records, the above criminal records can be acknowledged as having become final and conclusive by dismissing the prosecutor's appeal from the Supreme Court (Do 2016Do 14018) to November 25, 2016, and on the other hand, the defendant was released from the Gwangju prison on October 5, 2015, when the court of appeal (2015No. 2605) to September 17, 2015. The appellate court dismissed the prosecutor's appeal from the appellate court (2015No. 2605) to August 25, 2016.

In this regard, the execution of a sentence is premised on the final judgment (Article 459 of the Criminal Procedure Act), and it cannot be deemed that the execution of a sentence is the execution of a sentence, and the Defendant’s release of detention before the judgment on the criminal records became final and conclusive cannot be deemed as “the termination of the execution of a sentence” as stated in the requirements for repeated offense under Article 35 of the Criminal Act.

Therefore, as of the day when the judgment on the record of the above crime became final, the starting point of the repeated crime should be calculated (see Suwon District Court Decision 2015No 3973, Nov. 25, 2016). However, the crime of this case was at around 10:45, Nov. 25, 2016, and the time when the judgment on the record of the crime of this case became final and conclusive is at around 14:10, Nov. 25, 2016 (see Supreme Court Order 67:2, Jun. 2, 1967). Therefore, it is reasonable to view that the starting point of the repeated crime of this case was at around 14:10, Nov. 25, 2016.

Ultimately, the record of the crime appears to be not a repeated criminal offense in relation to the crime of this case, but a criminal record of the latter part of Article 37 of the Criminal Act constitutes a final and conclusive judgment of the same group. Thus, it shall be corrected ex officio to the extent that it does not interfere

[Criminal facts] On November 25, 2016, the Defendant is at the victim D’s residence located in Gwangju Northern-gu C2 level around 10:45 on November 25, 2016.